Legal Fees In A Divorce: Who Is Responsible?

Clients often ask their lawyers if their soon to be ex-spouse can be required to pay their legal fees at the end of a divorce case. While the Court does have the authority to order one party to contribute to the other party’s legal fees at the end of a case, it is no guarantee. There are a variety of overlapping statutes that apply to a request for contribution to legal fees[1]. There are even more cases out there analyzing these statutes.

As a general rule, attorney fees are the primary responsibility of the party for whom the services are rendered[2]. However, Section 508(a) and Section 503(j) of the Illinois Marriage and Dissolution of Marriage Act allows a trial court, after considering the financial resources of the parties and certain other factors, to order either spouse to pay the reasonable attorney fees and costs of the other spouse[3].

Many cases hold that a party seeking a contribution to attorney fees must show: (1) an inability to pay; and (2) the ability of the other spouse to pay[4]. Absent such a showing, the Court arguably cannot order one spouse to pay the other’s attorney fees[5]. The burden of proof is on the party seeking the attorney fees[6]. Financial inability to pay exists if the payment would strip the party of their means of support and would undermine their economic stability[7]. Where a party has already paid a portion of their outstanding fees, they have demonstrated the ability to pay them[8].

Whether the attorney fees of one spouse should be paid by the other spouse, and in what proportion, is a decision that lies within the sound and broad discretion of the trial court[9]. A trial court’s award of attorney fees will not be disturbed on appellate review absent an abuse of that discretion[10]. A trial court abuses its discretion when it acts arbitrarily, acts without conscientious judgment, or, in view of all of the circumstances, exceeds the bounds of reason and ignores recognized principles of law, resulting in substantial injustice[11].

When the financial circumstances of both parties are substantially similar, and one party’s inability and the other party’s ability to pay have not been shown, an award of attorney’s fees is an abuse of discretion[12]. Allowing attorney fees is never automatic, nor is it mandated simply upon a showing that one spouse has a slightly greater ability to pay the fees[13]. It is insufficient to merely show that the parties’ incomes differ significantly[14].

When determining an award of divorce attorney fees, the allocation of assets and liabilities and the relative earning abilities of the parties should be considered[15]. Regarding earnings, the court may consider both current and prospective income[16]. The court may also consider why attorney fees were incurred in the first place and whether one party’s conduct precipitated the litigation[17].

If it has been determined that an award of fees is appropriate, the trial court must then determine if the fees are reasonable[18]. The party seeking fees bears the burden of demonstrating their reasonableness with sufficient evidence[19]. While a hearing on the reasonable nature of attorney’s fees is not necessary in every case, especially where the trial judge is familiar with the procedural history of the case, the party contesting the award is entitled to a hearing upon request[20].

To justify a fee, more must be presented than a mere compilation of hours multiplied by a fixed hourly rate or bills issued to the client, since this type of data, without more, does not provide the court with sufficient information as to their reasonableness – a matter which cannot be determined on the basis of conjecture or on the opinion or conclusions of the attorney seeking the fees[21]. In determining the reasonableness of the fee, the trial court’s responsibility is not fulfilled merely by inquiring into the number of hours which counsel devoted to the matter[22].

Rather, the petition for fees (and the proofs offered in support thereof) must have some amount of detail giving the court sufficient information to judge the reasonableness, minimally specifying services performed and type of services, who performed the services, the time expended thereon, and the hourly rate charged therefor[23]. Because of the importance of these factors, it is incumbent upon the petitioner to present detailed records maintained during the course of litigation containing facts and computations upon which the charges are predicated[24]. In the case of computer-stored records, where the records sought to be admitted are summaries of original documents, such as time slips in the case, the original documents must be in court or made available to the opposing party, and the party seeking admission of the summaries must be able to provide the testimony of a competent witness or witnesses who have seen the original documents and can testify to the facts contained therein[25].

After the trial court has been presented with these facts, it must consider a variety of additional factors in determining “reasonableness” of the fee, including, without limitation, the skill and standing of the attorneys, the nature of the case, the novelty and/or difficulty of the issues and work involved, the importance of the matter, the degree of responsibility required, the usual and customary charges for comparable services, the benefit to the client, and whether there is a reasonable connection between the fees and the amount involved in the litigation[26]. The party seeking fees must present evidence of the usual and customary fees for like services in the area[27]. Further, alleged attorney’s fees may be reduced for double billing, billing for unnecessarily applied time, and other situations[28].

The Court is not bound by the attorney’s opinion as to what constitutes a reasonable fee and must inquire into all of the necessary factors[29]. In applying these factors, the trial court may rely on its own knowledge and experience in determining value of legal services[30]. The time spent on the case is the factor of greatest importance and an attorney’s general statement as to the time spent is an insufficient basis for a fee award; detailed time records are required itemizing both the time expended and the work performed[31]. The determination of “reasonableness” is left to the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion[32]. No party should be required to pay more than the reasonable value of the legal services rendered simply because he/she has the ability to do so[33].

Quite a lot goes in to seeking a contribution to your legal fees and no litigant should simply assume that their soon to be ex-spouse is going to be ordered to pay all of the fees in the case. Rather, the claim requires a separate petition, possible additional discovery to determine “reasonableness” and other factors, and sometimes a separate hearing. Clients and their lawyers should be prepared to address all of these issues if they want to try to seek a fee contribution at the end of a divorce case.

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[1] 750 ILCS 5/508(a), 750 ILCS 5/503(j), and, to the extent applicable, the 750 ILCS 5/504(d)(3) property division factors and the 750 ILCS 5/504(a) maintenance factors.

[2] In re Marriage of Garelick, 168 Ill.App.3d 321, 328 (1st Dist. 1988). See also: In re Marriage of Krivi, 283 Ill.App.3d 772, 780 (5th Dist. 1996); In re Marriage of McGuire, 305 Ill.App.3d 474, 479 (5th Dist. 1999); In re Marriage of Walters, 238 Ill.App.2d 1086, 1100 (2nd Dist. 1992); In re Marriage of Mantei, 222 Ill.App.3d 933, 941 (4th Dist. 1991).

[3] 750 ILCS 5/508(a). See also: Blum v. Koster, 235 Ill.2d 21, 44-47 (2009); and In re Marriage of Macaluso, 334 Ill.App.3d 1043, 1047 (3rd Dist. 2002); In re Marriage of Carr, 323 Ill.App.3d 481, 484-485 (1st Dist. 2001).

[4] In re Marriage of Garelick at 328. See also: In re Marriage of Goldberg, 282 Ill.App.3d 997, 1002 – 1003 (1st Dist. 1996); In re Marriage of Krivi, 283 Ill.App.3d 772, 780 (5th Dist. 1996); In re Marriage of McGuire, 305 Ill.App.3d 474, 479 (5th Dist. 1999); In re Marriage of Schneider, 214 Ill.2d 152, 174 (2005); and In re Marriage of Puls, 368 Ill.App.3d 882, 889 (1st Dist. 1994).

[5] In re Marriage of Miller, 84 Ill.App.3d 931, 937 (1st Dist. 1980).

[6] In re Marriage of Goldberg at 1003. See also: In re Marriage of Krivi at 780.

[7] In re Marriage of Garelick at 328. See also: In re Marriage of Schneider at 174; and In re Marriage of Miller, 84 Ill.App.3d 931, 937 (1st Dist. 1980); 2. H. Gitlin, Gitlin on Divorce par. 19.02(M), at 509 (1991).

[8] In re Marriage of Mantei, 222 Ill.App.3d 933, 942 (4th Dist. 1991).

[9] In re Marriage of Garelick at 328 – 329. See also: In re Marriage of McGuire at 479 (5th Dist. 1999).

[10] In re Marriage of Garelick at 328 – 329. See also: In re Marriage of Krivi at 780.

[11] In re Marriage of Suriano and LaFeber,324 Ill.App.3d 839, 846 (1st Dist. 2001).

[12] In re Marriage of Miller at 937. See also: In re Marriage of Krivi at 784-785.

[13] In re Marriage of Upoff, 80 Ill.App.3d 145, 147-148 (3rd Dist. 1980).

[14] In re Marriage of Stockton, 169 Ill.App.3d 318, 328 (4th Dist. 1988).

[15] In re Marriage of McGuire, 305 Ill.App.3d 474, 479 (5th Dist. 1999).

[16] In re Marriage of Selinger, 351 Ill.App.3d 611, 622 (4th Dist. 2004).

[17] In re Marriage of Cotton, 103 Ill.2d 346, 361-362 (1984).

[18] 750 ILCS 5/508(a) and 5/508(b). See also: In re Marriage of Skahn, 149 Ill.App.3d 764, 775 (1st Dist. 1986).

[19] Kaiser v. MEPC American Properties, Inc., 164 Ill.App.3d 978, 983 – 984 (1st Dist. 1987). See also: In re Marriage of DeLarco, 313 Ill.App.3d 107, 114 (2nd Dist. 2000).

[20] In re Marriage of Hogan, 58 Ill.App.3d 661, 668 (1st Dist. 1978).

[21] Kaiser v. MEPC American Properties, Inc. at 983 – 984. See also: In re Marriage of Angiuli, 134 Ill.App.3d 417, 423 (1985).

[22] In re Marriage of Malec, 205 Ill.App.3d 273, 285 (1st Dist. 1990).

[23] Kaiser v. MEPC American Properties, Inc. at 983 – 984.

[24] Id.

[25] In re Marriage of DeLarco at 116.

[26] Kaiser v. MEPC American Properties, Inc. at 983 – 984. See also: In re Marriage of Angiuli, 134 Ill.App.3d 417, 423 (2nd Dist. 1985); In re Marriage of Ransom, 102 Ill.App.3d 38, 41 (2nd Dist. 1981); and In re Marriage of Armstrong, 107 Ill.App.3d 217, 219 (1st Dist. 1982).

[27] In re Marriage of Girrulat, 219 Ill.App.3d 164, 171-172 (5th Dist. 1991). See also: In re Marriage of Morse, 143 Ill.App.3d 849, 857-858 (5th Dist. 1986).

[28] See generally: In re Marriage of Gasperini, 57 Ill.App.3d 578 (1st Dist. 1978); and In re Marriage of Kosterka, 174 Ill.App.3d 954, 960-961 (2nd Dist. 1988).

[29] In re Marriage of Ransom at 41.

[30] In re Marriage of Angiuli at 423. See also: In re Marriage of Armstrong at 219; and In re Marriage of Walters, 238 Ill.App.2d 1086, 1099 (2nd Dist. 1992).

[31] In re Marriage of Ransom at 41.

[32] Id.

[33] In re Marriage of Angiuli at 425-426.

J. Matthew Linstroth is an Associate with Katz & Stefani.